Alan Shatter (Dublin South, Fine Gael)

I am pleased to present the Criminal Justice (Search Warrants) Bill 2012 to the House. This is a short Bill, but an important one. As its Title suggests, it concerns search warrants, an essential tool in the effective investigation of crime. The primary purpose of the Bill is to restore, in updated form, the search warrant provision in section 29 of the Offences against the State Act 1939, which was found to be repugnant to the Constitution by the Supreme Court.

The relevant judgment was delivered on 23 February this year in the case of AH Charaf Damache v. the Director of Public Prosecutions, Ireland and the Attorney General. I think it would help the House in its consideration of the Bill if I outlined the background to the judgment and its main elements. The proceedings challenging the constitutionality of section 29 were initiated by an individual awaiting trial on a charge of making threatening telephone calls in connection with an investigation into alleged international terrorism. The alleged terrorist activity related to a conspiracy to murder Lars Vilks, a Swedish cartoonist whose drawings depicted the Islamic prophet Mohammed with the body of a dog and which provoked serious unrest in a number of Islamic countries. The individual was charged on foot of evidence gathered under the authority of a search warrant issued under section 29.

For the information of Members, I will read the relevant part of section 29. It states:

Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence [..] is to be found in any place [..] he may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.

The warrant at the centre of the proceedings was issued by the superintendent who was not only in charge of the investigation but actively involved in it. It authorised the search of the individual's home. There is no suggestion that the investigation was not properly carried out. The investigators operated in good faith within the law as it applied at the time.

The case submitted on behalf of the applicant was that section 29 was repugnant to the Constitution as it permitted a member of the Garda Síochána who had been actively involved in a criminal investigation to determine whether a search warrant should issue with regard to his or her own investigation. The defence submitted that as a matter of constitutional justice a decision authorising interference with an individual's right to privacy should, at a minimum, be made by someone independent of the investigation. The Supreme Court, on appeal, granted the declaration that section 29 was invalid, on the ground that it permitted a search of a dwelling on foot of a warrant that was not issued by an independent person. The court identified a number of important aspects to the issuing of search warrants which have assisted in shaping the approach adopted in the Bill before the House today.

First, in order for the process of obtaining a search warrant to be meaningful, it is necessary that the person authorising the search is able to assess the conflicting interests of the State and the individual in an impartial manner. Of note in this regard is that the court accepted that the issuing of a warrant is an administrative act rather than the administration of justice and therefore is not required to be performed by a judge. Second, the court emphasised that the dwelling is afforded special constitutional protection. Article 40.5 expressly provides that the dwelling is "inviolable and shall not be forcibly entered save in accordance with law". As pointed out by the court, any such interference by law must adhere to the fundamental legal norms postulated by the Constitution. The court concluded that section 29 did not incorporate the fundamental principle of an independent decision-maker and accordingly fell foul of the Constitution.

The court also stated that it was deciding the matter on the case before it and that it had not considered or addressed situations of urgency.

This is an important statement, as the Statute Book contains a small number of other provisions which permit senior officers of the force to issue warrants. For the most part these other provisions can be distinguished from the impugned section as they are restricted to circumstances of urgency requiring the immediate issue of a warrant that would render it impracticable to apply to a District Court judge. I will return to these provisions later.

In case there is a perception that the finding of unconstitutionality should have been anticipated and addressed proactively, I will say the following. It must be recalled that this particular search power formed part of the panoply of legislation designed to prevent terrorist groups from subverting the institutions of the State and indeed the State itself. It is regrettable that we have to have such provisions on our Statute Book but they are there as a response to a real threat posed by self-appointed, self-seeking groups and individuals who have no ambitions for the State or its systems apart from a destructive one. Members of this House may be aware that the Supreme Court referred in its judgment to the recommendation of the Morris tribunal with regard to section 29. The Morris tribunal did consider the proportionality of section 29. However, unlike a number of other recommendations in which Mr. Justice Morris recommended that specific action be taken, his recommendation for section 29 warrants called for "urgent consideration" to be given to changes in this area, rather than making an absolute recommendation that changes be made.

It is fully accepted that in fulfilling his role as a tribunal of inquiry, it was not a matter for Mr. Justice Morris to adjudicate on the constitutionality of legislative provisions. However, it is worth noting that in the relevant part of his report, not only did he not raise the prospect of the section being found unconstitutional; he pointed out that the issuing of a search warrant for a citizen's dwelling by a Garda officer rather than by a judge "is an exception allowed by our Constitution". The potential for section 29 to be found unconstitutional did not feature in the recommendation made by Mr. Justice Morris. The fact is that the provision had been operating for many decades, in its original form since 1939 and in its amended form since 1976. I acknowledged that Mr. Justice Morris recommended that "urgent consideration" be given to vesting the power to issue warrants under section 29 in judges of the District or Circuit Court. However, significantly, he also stated that a residual power could perhaps still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances. It would be quite wrong, therefore, to make any causal link between the provision being found unconstitutional and the action that was taken in response to that recommendation.

Legislative amendment as recommended by Mr. Justice Morris was urgently considered by my predecessor. However, it was not proceeded with, as the Minister was advised by the Garda Commissioner that to change the system would undermine the operational effectiveness of the Garda Síochána, particularly in situations in which urgent action is required to save lives or to react rapidly to serious crime or terrorism. I must also mention that the Law Reform Commission, following a submission from the Department, included an examination of search warrants in its work programme. The commission published its consultation paper on search warrants and bench warrants in December 2009. That consultation paper, which was published after the Morris tribunal recommendation, dealt specifically with the question of the constitutionality of search warrants issued by persons other than judges. It concluded that:

In light of... case law, it appears to be well established that issuing search warrants is an administrative, as opposed to a judicial, function. Therefore issuing can be carried out by a person other than members of the judiciary, such as peace commissioners and members of the Garda Siochana, and this does not offend the Constitution.

In the circumstances, there was clearly no basis for advising Ministers that there were grounds for concern about the constitutionality of section 29 warrants.

In the period since the judgment was handed down, my efforts have been directed towards seeking to ensure that the Garda Síochána has all the legislative back-up it requires to investigate terrorist activity and other serious crime. That is the aim of the Bill before the House. I take this opportunity to reassure Members that it is not the case that the Garda Síochána is without search powers following the court judgment. Gardaí can avail of other statutory powers which allow applications for search warrants to be made to District Court judges. In addition, the law allows gardaí to enter premises, including dwellings, for the purpose of carrying out arrests or to protect the lives of persons within. The absence of section 29 does, however, have the potential to hamper Garda investigations in situations of urgency in which there is insufficient time to contact a judge. It is for this reason that the Government and I have moved swiftly to replace the impugned provision with a constitutionally robust one which seeks to ensure that the proper balance is struck between the preservation of the security of the State and the constitutional protection afforded to an individual's dwelling.

Before turning to the provisions of the Bill, I will say a few words about its scope. In particular, I emphasise that it is focused on future investigations and does not - indeed, could not - have any effect on existing section 29 warrants. Members will be aware that there is no legislative option open to the Government to retrospectively address any concerns that may arise with regard to such warrants. Clearly, it is not possible for legislation to make something constitutional which the Supreme Court has declared to be unconstitutional. However, cases that might be affected by the terms of the judgement will be the subject of examination by the Director of Public Prosecutions and the Garda Síochána in order to decide how to proceed. In cases in which prosecutions are being considered, it is a matter for the DPP to decide whether to proceed. Where convictions have already occurred, it is a matter for the courts, in the event of a challenge to such convictions, to consider whether they should stand.

I acknowledge that for the victims of crime, the possible quashing of convictions that their evidence may have helped to secure will be distressing and difficult to accept. I acknowledge also that the possibility that they may be called on to participate in a retrial will bring further anxiety. But at the heart of any criminal justice system in a democracy is a requirement to try accused persons in due course of law. This necessarily includes a requirement to secure convictions on the basis of evidence gathered in conformity with our Constitution.

I will now outline to the House the main provisions of the Bill. Section 1 substitutes section 29 in its entirety in order to establish a new procedure for the issuing of search warrants under the 1939 Act, which will adhere to the principles set out by the Supreme Court. In addition, I have taken this opportunity to update the section by incorporating some elements that have become standard in more recently enacted search warrant powers. Before outlining the new procedure I must point out that the list of offences to which this section will apply remains almost unchanged and comprises the following: any offence under the 1939 Act itself; any offence that is for the time being a scheduled offence under Part V of the 1939 Act - that is to say, which may be tried before the Special Criminal Court, including such offences as directing an unlawful or criminal organisation; offences under the Criminal Law Act 1976, which include inciting or inviting a person to join an unlawful organisation or aiding a person's escape from prison; and treason. Also covered are the inchoate offences of attempting or conspiring to commit or inciting the commission of one of the principal offences. The only change is the inclusion of this latter offence, that of incitement. I have included it to ensure that all forms of secondary liability relating to the principal offences are covered.

The new procedure for the issuing of search warrants in connection with these offences is founded on the premise that, absent exceptional circumstances, applications for search warrants are best made to District Court judges. This is provided for in subsection (2). While, as I have said, the issuing of a search warrant does not constitute the administration of justice and need not, therefore, be restricted to judges, it is the case that judges are demonstrably independent of criminal investigations and their involvement provides the very necessary third party supervision emphasised in the judgment. That said, circumstances may arise in which a warrant is required immediately to prevent the destruction of vital evidence or the commission of a serious crime. In such urgent circumstances, and in the event that the District Court judge for the particular district cannot be contacted within the time available, subsection (3) allows a senior officer of the Garda Síochána to issue a warrant. By senior officer I am referring to a member not below the rank of superintendent. I emphasise that an investigating Garda will not simply be able to choose whether to apply to a District Court judge or a senior officer; he or she must apply to a District Court judge unless the very limited circumstances which permit an application to a senior officer are present.

Before detailing these limited circumstances, I should mention that the basic test for the granting of a search warrant applies to both judge-issued warrants and Garda-issued warrants under this section. In each case, before issuing a warrant to a sergeant, the issuer must be satisfied that "there are reasonable grounds for suspecting that evidence of, or relating to the commission of an offence to which the section applies is to be found in any place".

I have chosen the standard of "reasonable grounds for suspecting" as it mirrors the standard for obtaining search warrants contained in more recent statutes.

I have decided not to carry forward the wording of the original section 29, which allowed a warrant to be issued in relation to "the intended commission of an offence". Instead, warrants under the replacement section may only be issued in relation to the commission of an offence to which the section applies. Members will recall that the offences to which the section will apply include attempts, conspiracies and incitement. I am concerned that to go further than this and to retain the concept of intended commission would give rise to a perception that search warrants could be authorised in circumstances where no overt act in furtherance of an offence had been committed.

Search warrants relate to places. For the purposes of this section "place" is defined in non-exhaustive terms in subsection (12) and includes a dwelling. The language of the original section 29 regarding the meaning of place was the subject of some criticism. It referred to "any place whatsoever" and in doing so gave rise to the perception in some quarters that it was unusually broad. While that was not the case, I have taken this opportunity to update the language.

Returning to the limited circumstances in which a senior officer may issue a warrant, these are set out in subsections (4) and (5). Subsection (4) contains the key two-part test that must be met before a senior officer may issue a warrant. First, the officer may not issue a warrant unless he or she is satisfied that it is necessary for the proper investigation of an offence to which the section applies. Second, the circumstances of urgency giving rise to the need for the immediate issue of the warrant render it impracticable to apply to a District Court judge. The short duration of such a Garda issued warrant, 48 hours, when compared to the seven day duration of a judge issued warrant further emphasises that the option is restricted to exceptional circumstances.

Subsection (5) adds a further crucial condition and addresses the heart of the Supreme Court judgment. It requires the senior officer to be independent of the investigation concerned. I draw the attention of Members to subsection (12), which defines the meaning of "independent of" as it relates to an investigation. It is defined as "not being in charge of, or involved in that investigation". In the context of the command structures within the Garda Síochána this means an officer who is not in a position to issue directions on the investigation. Essentially, what will be required in practice is that the investigating Garda will apply to a senior officer in a parallel chain of command to his or her own.

A final safeguard arising from the judgment is contained in subsection (11). This places an obligation on a senior member who authorises a warrant under the section to either record the grounds at the time or as soon as reasonably practicable thereafter. As noted by the Supreme Court it is best practice to keep a record of the basis on which a search warrant is granted.

The remaining subsections deal with the execution of the warrant and the conduct of the search. A feature that distinguishes a warrant under this section from other warrants is that members of the Defence Forces may accompany members of the Garda Síochána during the search. This is a long-standing feature of section 29 and is an example of the Defence Forces being expressly authorised to act in aid of the civil authorities.

As is generally the case with search warrants, a warrant under this section will authorise the entry of the place named in the warrant, the search of both the place and any person found there and the seizure of anything found at the place or in the possession of a person present at the place. The right to enter is subject to the obligation to produce the warrant or a copy of it, if requested. This requirement is new to the 1939 Act and is intended as an added safeguard. The entry may be achieved by use of reasonable force, if necessary. Again the qualification of the force permitted as "reasonable" is new.

As is also generally the case with search warrants, subsection (8) provides that a warrant under this section will allow members of either force acting under the authority of the warrant to require any person present at the place where the search is being carried out to give to the member his or her name and address. An arrest power is provided in the event that any person obstructs or attempts to obstruct a member in the carrying out of his or her duties, fails to give a member his or her name and address or gives a false or misleading name or address. The final element of section 1 that I would like to highlight is subsection (9). It creates an offence of obstructing or attempting to obstruct a member, refusing to give a name or address on request or giving a false or misleading name or address. The maximum penalties on conviction are a class A fine, which is a fine not exceeding €5,000, imprisonment for a term not exceeding 12 months or both. Members will note that the offence is summary in nature. This represents a change from the impugned section which allowed the offence to be tried on indictment with a maximum penalty on conviction of a term of imprisonment of five years. As this offence is ancillary to the search rather than a principal offence, I am satisfied that it is appropriate that it be summary in nature.

I conclude my remarks on section 1 by noting that its contents represent a very careful consideration of the Supreme Court judgment in consultation with the Attorney General. I am satisfied that the new procedures incorporate the fundamental principle of an impartial decision maker as required by the Constitution.

Members will have noted that sections 2 and 3 of the Bill concern search warrant provisions in suspected drug offences. As I mentioned earlier, a small number of other statutory provisions allow for Garda issued warrants, generally in circumstances of urgency. One important such provision is that contained in section 8 of the Criminal Justice (Drug Trafficking) Act 1996 which permits a member not below the rank of superintendent to issue a warrant under section 26 of the Misuse of Drugs Act 1977. Certain conditions must be met, including that circumstances of urgency requiring the immediate issue of a warrant arise such that it would be impracticable to apply to a District Court judge or a peace commissioner. The purpose of the amendments to the 1996 Act contained in section 3 of the Bill is to apply two further safeguards to the issuing of such warrants, first, to require the senior officer who issues a warrant to be independent of the investigation and, second, to require the issuing officer to record the grounds on which he or she issued the warrant. These amendments will bring Garda issued warrants under section 26 of the 1977 into line with those issued under the replacement for section 29. Section 2 makes a minor consequential change to section 26 of the 1977 Act.

Section 4 is the final section of the Bill. It includes the Short Title and the commencement arrangements. As Members will appreciate from my earlier remarks, I am anxious to ensure there is no undue delay in the commencement of this Bill once it has been passed. For this reason section 4(2) provides that the Bill will come into operation the day after its passing. No commencement order will be required.

Before concluding my remarks I would like to take the opportunity to refer to a general review of search warrants that is to be conducted by my Department. This Bill is limited to addressing the implications of the Supreme Court judgment. There is, however, a complex series of approximately 300 Acts and statutory regulations, some dating from before the foundation of the State, that confer powers of search and seizure. It is timely to conduct a general review of such powers. This review and any subsequent legislative proposals will be informed by the forthcoming report of the Law Reform Commission on the subject.

In conclusion, I ask for the co-operation of this House in the passage of this Bill as speedily as possible in order that it may become law before the summer recess. I commend the Bill to the House.